Baby M, the Surrogacy Contract, and the Health Care Professional: Unanswered Questions (original) (raw)
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Ethics, Law, and Commercial Surrogacy: A Call for Uniformity
The Journal of Law, Medicine & Ethics, 2007
In July of 2005, Indianapolis witnessed streaming headlines in the local newspaper attempting to distill the confusion surrounding the adoption of two premature infants by an adoptive parent. Thirteen articles and opinion pieces introduced the public to a murky legal and ethical transaction. Stating his overwhelming desire to have children, a New Jersey schoolteacher hired the services of a local attorney. The attorney procured a South Carolina woman for a compensated gestational surrogacy contract. Under the contract, the surrogate and the attorney would meet in Indiana to complete the execution of the contract and transfer parental rights via adoption after the birth of the twins.
The normative importance of pregnancy challenges surrogacy contracts
Birth mothers usually have a moral right to parent their newborns in virtue of a mutual attachment formed, during gestation, between the gestational mother and the fetus. The attachment is formed, in part, thanks to the burdens of pregnancy, and it serves the interest of the newborn; the gestational mother, too, has a powerful interest in the protection of this attachment. Given its justification, the right to parent one's gestated baby cannot be transferred at will to other people who would wish to function as social parents of the child in question. This indicates that surrogacy contracts are illegitimate, and therefore should be void.
SSRN Electronic Journal, 2018
The surrogacy debate often conflates what should be seen as three distinct issues: the permissibility of the practice under any circumstances, the role of for-profit intermediaries in arranging surrogacy, and the role of compensation in influencing decisionmaking. For those who see surrogacy as intrinsically objectionable, nothing short of a total ban will suffice. For those who object to the commodification of reproduction or to the role of for-profit agencies in recruiting surrogates, however, the solutions lie in regulation rather than prohibition. Commercial agencies, unlike infertile couples who enter into arrangements with their friends and relatives, are repeat players. They are in a better position to institutionalize appropriate practices and instantiate acceptable norms than are parties driven by the desire to produce a child. We conclude that much of the objection to commercial surrogacy involves the practice's growing pains. In the end, commercial agencies, particularly if they are subject to regulations that require transparency and provide oversight, may promote human dignity as well as, or better than, individually negotiated altruistic arrangements.
LEGAL AND ETHICAL ISSUES INHERENT IN SURROGACY: AN ANALYSIS
, http://www.euroasiapub.org (An open access scholarly, peer-reviewed, interdisciplinary, monthly, and fully refereed journal.) Surrogacy is a practice that provides the childless with the hope of fulfilling their right to procreate with the aid of a third party referred to as the surrogate mother who is able to have a source of income in lieu of giving birth to a child. However this practice at the outset may seem very amicable as it solves the purpose of both the parties, but there are many ethical issues that the parties often overlook while entering into such arrangements and oblivious of the repercussions of the failure of these agreements they are unaware of the legal implications as well. The Warnock committee report was aimed at basically a more prohibitive approach to surrogacy though it was not aimed at the complete prohibition and it essentially discouraged this practice 1. Thirteen years later the government commissioned the Margret Brazier committee which was less hostile towards the approach to surrogacy as compared to the Warnock committee report, nevertheless it provided that the regulation should not appear to either endorse or encourage the practice of surrogacy. In Briody vs. St Helen's and Knowsley AHA 2 , Justice Hale concluded that surrogacy as such is not contrary to public policy but the issue is a difficult one, upon which the opinions are divided, so that it would be wise to tread with caution. She expressed the view that if there is a trend towards the acceptance and regulation as a last resort rather than towards prohibition. The Warnock committee report outlined the major moral obligations to the practice of surrogate motherhood 3. 1) It is inconsistent with human dignity that a woman should use her uterus for financial profit. 2) To deliberately become pregnant with the intention of giving up the child distorts the relationship of giving up the child distorts the relationship between the mother and the child. 3) It is often argued that surrogacy and especially commercial surrogacy involves baby selling in the sense that the surrogate mother agrees to lease the womb and produce a child as a product with the raw materials provided by the genetic parents. (4) The counterargument though to this issue is that a child is a unique individual and the sole desire of the commissioning parents, the money paid to the surrogate mother is only for the pains she incurs and the expenses that she may have to incur while bearing the pregnancy and by this agreement in no way the dignity of the child is being demaned.